Supreme Court of the United States Commons^™

The Exactions Illusion: Sheetz’S Missing Dissent, Lee Anne Fennell, Timothy M. Mulvaney

Faculty Scholarship

In April 2024, the Supreme Court unanimously handed down Sheetz v. County of El Dorado, a land use exactions case billed as narrow, inevitable, constitutionally compelled, and obviously correct.  It was none of those things. Sheetz instead ushered in an open-ended shift of policy control over the built environment from state and local legislatures to courts. By its terms, the holding extended the Court’s stringent “exactions” test—which requires the government to prove nexus and proportionality between development conditions and development impacts—beyond its original context of parcel-specific administrative bargains to reach an unspecified set of legislated property conditions. Yet the decision’s …

Skrmetti And The Problem Of Incidental Intent, Martin Katz

William & Mary Law Review

The modern Supreme Court has defined “discriminatory intent” as a strict-liability concept. It does not matter why the government sorts people by a protected characteristic, such as race or sex; it matters only that the government does sort people by such a characteristic. This principle is the key holding of affirmative-action cases, such as Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. Yet, in the recent case United States v. Skrmetti, the Court seemed to focus not on the question of whether the government sorted people by sex (it did), but on the question …

Land Use And Sovereignty Along The Catawba River, Thomas C. Brugh, Lucile C. Rencher

Student Scholarship

This document-based case study explains how land-use change along the Catawba River Corridor (Lancaster and York Counties, South Carolina) has been produced through the interaction of property rights (dominium) and rule-setting authority (imperium), showing why sovereignty continues to shape development even after land disputes appear “settled.” Through analyzing legal records (Treaty of Nation Ford, the 1959 Catawba Division of Assets Act, the 1986 Supreme Court timing decision, and the 1993 Settlement Act), planning documents, parcel records, and field observations, we trace how shifting jurisdiction and title certainty structured what kinds of land uses were possible and when. We argue that …

Applying The Indian Commerce Clause To Indian Commerce, Adam Crepelle

Northwestern University Law Review

Indian country commerce generates tens of billions of dollars annually and is a constant source of litigation. These disputes typically revolve around jurisdictional conflicts: whether states, tribes, or both possess regulatory authority over the business operating in Indian country, particularly those involving non-Indians. Despite numerous court cases, no clear legal framework has emerged, creating pervasive uncertainty regarding fundamental issues, such as state taxation of tribal transactions and the proper forum for resolving Indian country contract disputes. Interestingly, these commercial cases overlook the Indian Commerce Clause—the constitutional provision designed to address such matters.

This Article argues the Indian Commerce Clause prohibits …

Electoral Due Process, Michael S. Kang

Northwestern University Law Review

Hyperpartisanship has hit century-long highs in American politics and is emboldening state government attempts to undermine election outcomes by using control over state lawmaking structure to strip away authority, and sometimes outright unseat, partisan opponents after they win elected office. Even as traditional norms against such moves have eroded, the Supreme Court has taken a pro-partisanship turn in removing judicial checks against such moves under equal protection and constitutional structure. This Article proposes shifting from challenges under those doctrines to a new approach under electoral due process for confronting this new generation of antidemocracy. Federal due process law restricts the …

The Federalism Canons As Ordinary Interpretation, Anthony J. Bellia Jr., Bradford R. Clark

Northwestern University Law Review

Scholars remain generally skeptical of substantive canons of statutory interpretation even as courts continue to employ such canons in important cases. Unlike semantic canons, which help judges discern the best meaning of statutory text in context, substantive canons provide tiebreakers when the text is unclear or require special clarity in order for the text to perform certain functions. Among the substantive canons, the so-called “federalism canons” have been singled out for special scrutiny. The federalism canons are a family of canons that require courts to avoid interpreting an act of Congress to divest states of certain sovereign rights or powers—including …

The Establishment That Time Forgot: The Historical Understanding Of Religious Offenses And Their Unconstitutionality In Modern Law, Benjamin J. Citow

Northwestern University Law Review

This Note argues that religious offenses, meaning laws which penalize conduct for religious purposes, should be barred by the Establishment Clause of the Constitution, as the Clause was interpreted in Kennedy v. Bremerton School District. This is because Kennedy interpreted the Establishment Clause to prohibit each of the several types of laws which early Americans associated with religious establishment—the historical practice wherein early states would adopt a religion as the state religion and pass various types of laws for its support. And religious offenses, this Note argues, were amongst the types of laws which early Americans so associated with …

Toward A New Era Of American Indian Scholarship: An Introductory Essay For The American Indian Law Journal, Matthew L.M. Fletcher

American Indian Law Journal

No abstract provided.

Time As A Constitutional Constraint: Resolving The Circuit Split On Prolonged Fourth Amendment, Ian Seabrooks

Washington Law Review Online

The Fourth Amendment of the U.S. Constitution states, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .” Some circuits, like the Ninth and D.C. Circuits, have interpreted the Fourth Amendment’s reasonableness standard to apply beyond just the initial seizure of property but also to include the continued retention of the seized property. Other circuits, such as the First, Second, Sixth, Seventh, and Eleventh Circuits, have read the reasonableness standard more narrowly and interpreted this requirement to pertain only to the original seizure. …

From Dred Scott To Barbara: Birthright Citizenship, Racial Exclusion, And The Enduring Promise Of The Fourteenth Amendment, Jenna A. Milbrodt

CMC Senior Theses

The Fourteenth Amendment’s Citizenship Clause has guaranteed birthright citizenship to all children born in the United States for hundreds of years. Yet, President Trump’s January 20, 2025, executive order threatens to strip that right from children born to parents unlawfully in the country and temporary visitors. This order, if permitted to stand, would change the definition of US citizenship and render countless children stateless persons without citizenship rights. This paper examines whether birthright citizenship in the US, properly understood, extends to children of unlawful immigrants and temporary visitors. To answer this question, three time periods of change in citizenship rights …

Certiorari Transparency, Alexandra L. Klein, Michael L. Smith

Scholarly Articles

Amid increasing controversy over the Supreme Court’s amassing of power, rejection of precedent, reliance on the shadow docket, and Justices’ undisclosed acceptance of lavish gifts, legal scholars, commentators, and politicians have called for bold and far-reaching reforms to the Court, including term limits for Justices, stripping the Court of jurisdiction in certain cases, and adding Justices to the Court. This Article proposes a more subtle reform to the Court’s proceedings: the Court should make its certiorari de-terminations, in which it decides which cases to take up and review, public. Currently, the Court exercises near-complete discretion over the cases it decides …

How The Supreme Court’S Inconsistent Approach To Granting Emergency Relief Will Exacerbate, Rather Than Mitigate The Disruption Its Emergency Stay Policy Is Supposed To Address, Harvey L. Reiter

Cardozo Law Review de•novo

The federal government has used the Supreme Court’s emergency or “shadow” docket to great effect this past year, securing stay after stay of lower court rulings that had blocked many of the President’s executive orders. But the Court’s rulings have come, almost invariably, without any explanation of its reasoning. And its opaque and uneven rulings have also come at a potential cost to the Court’s credibility. This Article illustrates the uneven nature of the Court’s rulings by contrasting two lines of cases: (1) the Court’s stays of lower court rulings restoring to their positions FTC, NLRB, EEOC, and MSPB members …

Recalibrating Deference In Sentencing, Meghana Nemali

Fordham Law Review

The U.S. Sentencing Commission (the “Commission”) is responsible for promoting consistency, transparency, and fairness in federal sentencing. In pursuit of this mandate, the Commission publishes the U.S. Sentencing Guidelines (the “Guidelines”), which are accompanied by official commentary. In Stinson v. United States, the U.S. Supreme Court endowed the commentary with controlling authority. However, nearly three decades later, the Court in Kisor v. Wilkie granted courts greater discretion in deciding whether to defer to the commentary. Moreover, in 2024, the Court eliminated the absolute deference regime for administrative agency determinations in Loper Bright Enterprises v. Raimondo. As a result, …

Ten Commandments Cases: Learning From Reformation Coercion, Paul E. Mcgreal

Michigan Law Review Online

The Supreme Court’s recent embrace of “historical practices and understandings” in interpreting the Establishment Clause has emboldened states to challenge forty-five years of precedent prohibiting Ten Commandments displays in public schools. Yet, these states advance a version of history that mistakenly ignores European religious persecution that shaped how the Founders understood the establishment of religion. This Essay remedies that error through a novel historical analogy: sixteenth-century Catholic processions that forced Protestants to choose between betraying their conscience or marking themselves for persecution. Like modern students confronting state-mandated religious texts, Reformation-era dissenters faced orchestrated tests of faith designed to identify and …

The Paradox Of Intellectual Property At The U.S. Supreme Court, Tonja Jacobi, Matthew Sag

Faculty Articles

The Supreme Court is dramatically more politically polarized in the Roberts Court era, and the justices have been criticized for highly ideological and partisan decision-making. Yet, we show that there is one area of law that is becoming less ideologically divided and predictable: intellectual property (IP). In an earlier study, we showed that, prior to the Roberts Court, IP case outcomes were predictable based on judicial ideology, with more conservative justices embracing IP rights, as they do for real property. In the last two decades, IP has become more influential on the economy and society, through the increasing dominance of …

Fair Use In The Supreme Court: A Peek Behind The Scenes, Jonathan Band

Joint PIJIP/TLS Research Paper Series

Between 1975 and 1994, the Supreme Court considered five cases that involved fair use: Williams & Wilkins v. United States; Sony v. Universal City Studios; Harper & Row v. Nation Enterprises; Stewart v. Abend; and Campbell v. Acuff-Rose. The papers of the Supreme Court Justices that decided these cases show the Court as a profoundly human institution with the Justices often struggling to fashion opinions that could gain the support of a majority. The Justices clearly cared about the copyright merits, but they were also willing to compromise to achieve a certain result. In several …

Public Schools: Immigration & Customs Enforcement’S Unconstitutional And Inhumane Hunting Ground, Ma Camille Briones

Roger Williams University Law Review

No abstract provided.

A History Of Vacatur, Benjamin B. Johnson

UF Law Faculty Publications

Vacatur, a seemingly routine appellate tool, has evolved into one of the Supreme Court’s most potent instruments for declaring law. This Article offers the first comprehensive historical account of vacatur, tracing its roots from English and early American practice through its twentieth-century transformations to its contemporary uses. Historically, courts used vacatur to manage dockets, correct procedural irregularities, or enforce reversals on the merits. Modern usage has departed markedly from these roots. The Court now frequently employs vacatur to declare binding legal rules without issuing judgments, effectively circumventing traditional limits on judicial power. Taking seriously the Court’s own insistence on history …

The People, The Branches, And The Pearl Of Independence, Brian C. Murchison

Scholarly Articles

What will be the fate of the independent agencies?  Since 1887, Congress has seen fit to address an array of contemporary issues by creating expert federal agencies, such as the Interstate Commerce Commission, the Federal Trade Commission, the National Labor Relations Board, and others.  The principal officers of these agencies are appointed by the President on advice and consent of the Senate, serve limited staggered terms, are bipartisan in the sense that only a bare majority of the agency’s officers can be members of the same political party, and are “independent” in the sense that the officers are removable only …

The Forgotten Income-Attribution Power, Alex Zhang

Faculty Articles

Economic inequality stands at record levels, and constitutional law haunts egalitarian reform. In 2024, the Supreme Court decided the latest contest. Moore v. United States rebuffed an attempt to sharply limit the federal taxing power, as a razor-thin majority upheld Congress’s attribution of foreign corporations’ income to domestic shareholders. But four Justices criticized the reasoning of the majority, faulting its use of a fabricated doctrine.

This Feature provides a systematic account of Congress’s income-attribution power. It excavates overlooked litigation materials and case law from the infancy of the current federal income tax. In the 1920s and 1930s, litigants attacked, on …

Do We Really Want Retired U.S. Supreme Court Justices Practicing Law? A Public Policy Critique To U.S. Supreme Court Term Limits, Michael J. Broyde, Hayden H. Hall

Faculty Articles

In its 2021 final report, the Presidential Commission on Judicial Reform discussed the merits of implementing term limits for Supreme Court justices. The Commission began by acknowledging that eighteen-year, non-renewable terms have considerable bipartisan support, including the support of both Conservative and Progressive scholars at the National Constitution Center, whose proposals for improving the Constitution included term limits for justices. They continued by weighing the pros and cons of implementing term limits via constitutional amendment or statute, addressing, in turn, the specifics of what these limits might look like—whether a twelve or eighteen-year term is preferable, how a transition from …

Popular Constitutionalism In A Populist Age, Thomas G. Donnelly

Law Faculty Publications

Popular constitutionalism burst onto the scene as a challenge to the constitutional authority of the Supreme Court. Decades later, popular constitutionalists remain susceptible to one of the earliest (and most potent) critiques of their project—the charge that they have done far too little to explain how their theory might work in practice. With the rise of modern populism, it’s also fair to ask whether popular constitutionalism is an approach that’s capable of meeting the challenges of the current constitutional moment. In this Article, I offer a new vision for popular constitutionalism—one that shows how the theory might work in practice, …

The Eighth Amendment And Prison Staff-To-Sentenced Prisoner Sexual Violence, Matthew Lyskawa

Faculty Scholarship

In this Article, I provide the first comprehensive account of lower federal courts’ Eighth Amendment prison conditions jurisprudence regarding prison staff-to-sentenced prisoner sexual violence. I show that lower federal courts are systematically misunderstanding and misapplying Supreme Court case law in this context. The result is that sexually victimized prisoners must meet extremely burdensome doctrinal standards unique to sexual violence claims. Lower federal courts would faithfully follow Supreme Court precedent if they applied the excessive force standard to sexual assault claims and the conditions of confinement standard to sexual harassment claims. However, a faithful application of Supreme Court case law does …

Llm-Assisted Legal Propositions Identification From Party Arguments In The U.S. Supreme Court Briefs, Heng Zheng, Alex Zhang

Faculty Scholarship

Merits briefs are central to U.S. litigation, serving as the primary means for parties to present arguments and persuade judges. Legal propositions in these merits briefs are the atomic units of arguments, whose relationships evolve throughout litigation and inform court decisions and precedent. Large language models (LLMs) have been applied to legal document review, but there is limited evidence on their ability to identify legal propositions in merits briefs. Given the labor-intensive nature of the task, we evaluate a human-AI collaborative approach to identifying legal propositions in the U.S. Supreme Court merits briefs, in which legal annotators review and revise …

The Unmaking Of Section Two, Maureen Edobor

Scholarly Articles

Section 2 of the Voting Rights Act now stands at a paradoxical crossroads. Though it remains the statute’s central protection against racial vote dilution after Shelby County v. Holder, it is increasingly undermined by a constitutional framework that treats race-conscious remedies as suspect rather than necessary under Section 2. This Essay argues that Section 2 is being quietly unmade—not through direct invalidation, but through the convergence of Equal Protection Doctrine, racial-gerrymandering jurisprudence, and an ascendant commitment to colorblind constitutionalism. Tracing the Fifteenth Amendment’s original design and Congress’s expansive enforcement authority, the Essay situates Section 2 within a constitutional tradition …

Amicus Incorporated, Adam N. Eckart

Mitchell Hamline Law Review

Attorneys have long advanced change through the court system—including through high-stakes, high-profile litigation in front of the Supreme Court of the United States. Attorneys appearing before the Court often represent individuals, nonprofit organizations, or the gov-ernment, and often seek to drive social reform through the platforms of their organizations. But attorneys representing big businesses also advo-cate for change through action at the Supreme Court. While businesses are not new to speaking out in front of the Court, they have become in-creasingly active in cases focused on social issues, including by submit-ting amicus briefs to the Court in support of a …

Hester’S Dubious Roots And Legacy: Open Fields Doctrine Under Scrutiny, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

For over a century, open fields doctrine has shaped Fourth Amendment law, denying people the right to be secure on their own property. Its application has steadily expanded, with the result that, by some estimates, the Government can now engage in warrantless surveillance of some ninety-six percent of private land and buildings regardless of fences, postings, the distance from public roads or byways, or the use to which the property is put. An originalist approach throws the doctrine into disarray: at the time of the Founding, common law protected the curtilage, which extended to the fields, barns, storehouses, and other …

Constitutional Powers Midterm Exam, Jordan Reitzfeld

Open Educational Resources

Students apply constitutional principles and court decisions to contemporary questions about the powers of Congress, the president, and the judiciary. They defend positions on possible reforms and analyze property rights, copyright, and trademark issues.

Reconstituting A Constitution, And A Republic: The Architecture Of Authoritarian Rule, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

A constitution can be remade without tearing it down, or even changing a single word. It is done by law.

“The judicial power is vested in one Supreme Court and in such inferior courts as Congress may establish,” whose “province and duty” it is to “say what the law is.” U.S. Const. Art. III §1; Marbury v. Madison, 5 U.S. 1 (Cranch) 137 (1803). It is not the power to remake the Constitution that grants it.

The Supreme Court is turning the inherited powers that hold power to law into instruments of its own aggrandizement. It is taking authority from …

Creation And The Republican Revival, William M. Treanor

Georgetown Law Faculty Publications and Other Works

Gordon Wood's classic book Creation of the American Republic has long influenced legal thought and originalist scholarship in particular. It played a central role in the Republican Revival movement, an effort by leading scholars such as Cass Sunstein and Frank Michelman to recover a progressive originalism at the same time as conservative originalism was starting to shape constitutional jurisprudence. But, while the Republican Revival nominally relied on Wood, it misread central elements of his book - his concept of virtue and his belief that republicanism had largely been displaced at the time of the drafting of the Constitution.

The time …